Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

Both the priest’s and the nun’s lawsuits depend on whether they were fired for discriminatory or nondiscriminatory reasons. As Judge Posner has explained, “the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer’s action rather than being a pretext for a decision based on some other, undisclosed ground. … If it is the true ground and not a pretext, the case is over.”

A similar distinction between what is true and what the individual believes to be true is also a crucial component of First Amendment analysis. Under a long line of Supreme Court cases beginning with Ballard v. United States, courts and juries are free to decide whether an individual’s religious beliefs are sincerely held but not whether they are true. Soldiers are routinely subjected to court analysis of whether their religious beliefs are sincerely held before they receive conscientious objector status. Unemployment compensation benefits may be withheld or granted based on whether an applicant’s religion is sincerely held. Prisoners’ religious beliefs are regularly subjected to sincerity review when they request accommodations of their religious practices. Plaintiffs must hold a sincere religious belief in order to win a religious discrimination lawsuit under Title VII. Legislators are usually subjected to a court determination whether they acted with a secular purpose; the Establishment Clause invalidates their legislation if they acted with a religious purpose or a sham secular purpose.

In the employment discrimination context, it should be appropriate for courts to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge, i.e., whether the priest was fired in retaliation and the nun denied tenure on the basis of gender. Courts should be able to determine the sincerity of the employer’s motivation without intruding upon religious truth. Was it disabilities or religion that motivated the firing? Race or religion? Gender or religion? Age or religion? And so forth.

Justice Antonin Scalia parsed pretexts when he asked the church’s lawyer if a sham is different from a pretext. Scalia asked if the church’s position

would allow the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?”

The church’s lawyer, Douglas Laycock, said yes to probing the church’s sham assertion that this person is a minister and no to deciding whether the firing was a pretext.

But the question of who is a minister is much more theological than determining whether a firing was pretextual. Perhaps it is the justifications for the ministerial exception that are a sham?